Mr Michael Shorrock v National Auto Glass Supplies

[2013] FWC 9218

[2013] FWC 9218

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Michael Shorrock
v
National Auto Glass Supplies
(U2013/11055)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 29 NOVEMBER 2013

Summary: application under s.399A(1)(b) - dismiss for reasons of non compliance with directions - s.399A(1)(a) non-appearance at hearing - statutory focus on unreasonableness of employee’s conduct.

[1] On 2 July 2013 Mr Michael Shorrock (“the Applicant”) made an application under s.394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy in relation to the decision by his employer National Auto Glass Supplies (“the Employer”) to terminate his employment.

[2] The Applicant’s employment was terminated on 28 June 2013. The Employer is a national system employer and the application is otherwise within jurisdiction.

[3] The reason for the dismissal appears to have arisen because of the Employer’s concern that fraudulent conduct may have been responsible for significant stock or inventory discrepancies in the end of year stock-take. For example, the Applicant had reported a shortfall of two windscreens. The Employer had discovered a shortfall of 301 windscreens.

[4] The Applicant claims that the Employer’s stock-take relied on historical discrepancies, and other variations arose from pressures of the work and stress.

[5] I have no view as to merit of the application, and set this material out for context only.

Further background: chronology

[6] A conciliation conference was conducted on 13 August 2013, and was unsuccessful in resolving the matter.

[7] Following the conciliation conference, the matter was allocated to me, in time, and thereafter a directions timetable was issued to the parties (by email and surface mail). The directions were issued on 24 September 2013.

[8] The Applicant’s materials were required to be submitted by 5.00pm on 16 October 2013.

[9] A Notice of Representative Commencing to Act (for the Employer) was received on 26 September 2013.

[10] The Applicant did not comply with the directions. He filed no materials by 16 October 2013.

[11] An e-mail was despatched to the Applicant on 17 October 2013. The Applicant was advised that he had not complied with the directions and was given 24 hours in which to submit his materials. At that time the attention of the Applicant was brought to s.399A of the Act. A copy of these provisions was provided in the text of the correspondence.

[12] On 17 October 2013 a telephone (voice) message (alerting the Applicant to the above matters) was also left with the Applicant on the telephone number he had provided for contact purposes in relation to his application.

[13] No response was received from the Applicant.

[14] A further voice message was left on the Applicant’s telephone on 21 October 2013 at around 9:20 AM.

[15] No response was received from the Applicant.

[16] A further email was sent to the Applicant on 21 October 2013, forwarding the above mentioned email of 17 October 2013, and further alerting the Applicant to the voice messages left and asking him to advise the Commission whether he wished to pursue the matter.

[17] No response to this email was received.

[18] Another voice message was left on 25 October 2013 around 11.53 a.m.

[19] No response was received from the Applicant.

[20] Another telephone call was directed to the Applicant on or about 31 October 2013 at around 1:36 PM and a message was left. The Applicant was again telephoned later that same day on a land line number. This time the Applicant answered his phone. The Applicant was directed to examine his e-mails and other mail and to attend to his obligations in relation to the directions. He undertook to address these matters.

[21] But by 4 November 2013 no response had been received from the Applicant.

[22] As a consequence, a further e-mail was directed to the Applicant setting out the issues in relation to non-compliance and again indicating to the Applicant the availability to the Employer of the jurisdiction under s.399A of the Act.

[23] No reply was received from the Applicant in relation to this e-mail.

[24] On 5 November 2013 the Employer formally moved for the application to be dismissed by making an application under s.399A(1)(b) and (2) of the Act.

[25] Following receipt of this application, the parties were advised by email on 12 November 2013 that the original hearing date for the arbitration of the original application would be retained but would instead be utilised for the purposes of hearing the application in relation to s.399A of the Act. An amended notice of listing was sent to the Applicant by email and express post surface mail.

[26] Because the original substantive application was listed for hearing in Townsville, the application in relation to s.399A of the Act was set down for hearing by telephone.

[27] On 21 November 2013, at the commencement of the hearing, the Applicant did not make an appearance.

[28] Efforts were made to contact the Applicant by telephone. The Applicant’s mother answered the land line number provided on the application and the Commission was informed that the Applicant was not available as he had departed on (seemingly) non-rostered work, though he was probably aware of the hearing. The Applicant himself made no effort to contact the Commission or the Respondent to explain his circumstances or to seek an adjournment. At the time of the publication of this decision, the Applicant has still made no contact with the Commission.

[29] Over the course of the hearing the Employer amended its application under s.399A (which had been under s.399A(1)(b) of the Act) to include a ground under s.399A(1)(a) of the Act, which concerned the Applicant having acted unreasonably in failing to attend a hearing held by the Commission in relation to the application.

Statutory context

[30] The application before me is one that is agitated by way of s.399A(2) of the Act, which enlivens the jurisdiction of the Commission to exercise its discretion under s.399A(1) of the Act. These provisions provide as follows:

399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

[31] The Fair Work Amendment Bill 2012 Explanatory Memorandum provides as follows in respect of the introduction of the new s.399A of the Act:

Part 2 – Power to dismiss applications

Fair Work Act 2009

1. Item 2 inserts a new section 399A to enable the FWC to dismiss an unfair dismissal application where the FWC is satisfied that the applicant has unreasonably:

● failed to attend an FWC conference or hearing relating to the application

● failed to comply with an FWC direction or order relating to the application, or

● failed to discontinue the application after a settlement agreement has been concluded.

1. The power to dismiss an unfair dismissal application in these circumstances is not intended to prevent an applicant from robustly pursuing a legitimate unfair dismissal claim. Rather, the amendment is intended to address the small proportion of applicants who may pursue claims in an improper or unreasonable manner. This amendment responds to Panel recommendation 42.

2. In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant. Examples of when the FWC may exercise its discretion to dismiss an application under these provisions may include where:

● an applicant fails to attend an FWC proceeding relating to the matter without providing prior advice and/or without any reasonable excuse for their failure to attend, or

● an applicant continues to pursue an unfair dismissal application despite a settlement agreement having been concluded by the parties.

1. Note 2 to new subsection 399A(1) draws the reader’s attention to the FWC’s capacity to make an order for costs under new section 400A (explained below) if satisfied that the applicant’s failure caused the other party to the matter to incur costs.

2. New subsection 399A(2) provides that the power to dismiss applications is only exercisable on application by an employer.

3. Subsection 399A(3) and Note 1 to subsection 399A(1) make clear that new section 399A is not intended to limit the FWC’s general power to dismiss applications on grounds such as where the application is frivolous or vexatious or has no reasonable prospects of success under section 587. Similarly, item 3 inserts a note to subsection 587(1) to highlight the FWC’s power to dismiss an unfair dismissal application under new section 399A.

4. Item 1 of Schedule 11 inserts a new Schedule 3 into the FW Act. Item 11 of Schedule 3 provides for these amendments to apply in relation to dismissals that take effect after the commencement of this Part.

Consideration

[32] I have set out my reasoning in relation to the proper approach to s.399A of the Act in an earlier decision [2013] FWC 9209.

[33] I rely on that reasoning for current purposes.

[34] It is enough to say at this point that s.399A of the Act frames the exercise of the Commission’s discretion in the context of the unreasonableness of the Applicant’s conduct (in this instance in relation to both failing to comply with a direction of the Commission and failing to attend a hearing of the Commission).

[35] As set out above, considerable efforts were made to bring about compliance (on the part of the Applicant) with the original directions of 24 September 2013.

[36] The Applicant at no time made contact with Chambers or otherwise provided any indication as to his intentions.

[37] When direct personal communication was established with the Applicant eventually (on or about 31 October 2013) it was apparent that the Applicant was aware of the requirements that had been placed upon him as a consequence of his own application. Still, the Applicant made no steps to prosecute his claims.

Conclusion

[38] On the basis of the Applicant’s persistent failure to comply with directions of the Commission, and the fact that he did so unreasonably and without any explanation, I dismiss the application under s.394 of the Act pursuant to s.399A(1)(b) of the Act.

[39] The Applicant also failed to attend a hearing of the Commission on 21 November 2013. The Employer sought to capture this conduct by amending its application to include the ground under s.399A(1)(a) of the Act.

[40] Whilst the Applicant did not attend the hearing that day, and that the incidental evidence is that he understood that there was such a hearing, I do not rely upon this ground for the purposes of dismissing the application. This is because where an application is made under s.399A(1)(a) of the Act the Applicant should be given an opportunity to reply before such time as the failure to attend is construed to be unreasonable conduct (for the relevant purpose).

[41] But I am not disposed to cause further delay and subject the Employer to continued uncertainty and cost when the initial ground of its application (on the evidence at hand) has been made out.

SENIOR DEPUTY PRESIDENT

Appearances:

No appearance from the Applicant

Mr G. Jogia, Managing Director of the Respondent

Hearing details:

By telephone

2013

21 November

Printed by authority of the Commonwealth Government Printer

<Price code C, PR544900>